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Why do we make it illegal to build the neighborhoods Americans love most?

By Joe Cortright

10.5.2018

Narrow streets, a mix of large houses and tiny apartments, interspersed with shops and businesses in close walking distance. It’s the most desirable neighborhood in the city, and we’ve made it illegal to build any more like it.

Editor’s note: City Observatory originally published this commentary in 2015. Our friend Robert Liberty a keen observer of and advocate for cities, and the questions he posed then are still salient for urbanists.

by Robert Liberty

For many years I lived in Northwest Portland, Oregon.

It was a part of the city first settled by white pioneers in the 1860s, but development really took off when the streetcar arrived in the first half of the 1900s. (A century later, the old streetcar tracks had to be dug up so they could put down the new streetcar tracks.)

I first moved there in the 1980s by renting a part of a house. Then I moved a few blocks away into a courtyard apartment building of a type built all over the city in the 1940s. There were a dozen one and two-bedroom apartments on two floors around a small courtyard, built on a 15,000 square foot lot (about one-third of an acre, roughly the size of many suburban house lots). There were storage areas and a laundry room in the basement.

Next door to the west was a large single family house, built around World War I. To the south was a one-story three-plex: three tiny apartments slotted into a narrow strip between our building and a large old home.

Kitty-corner across the street was a small restaurant that served breakfast at a few booths and a counter. For a few years, every Saturday, a long black limousine with tinted windows would park near the restaurant and the chauffeur would deliver a hot breakfast to the occupant and then take away the dirty dishes. I never found out who was in the limousine.

Diagonally across the street to the northeast was a warehouse that processed large volumes of “direct mail”—i.e., spam.

Across the street to the north sat another Edwardian house used for offices, a bland three-plex built in the 1970s, and a four-plex that looked like a large single-family home in Dutch Colonial style. I lived in that four-plex happily for many years.

The rest of the street was a mix of large older homes on small lots and small apartment buildings. Both young families and older couples lived in the houses and apartments.

The street was shaded by big trees and it was usually very quiet. The street was so narrow that bigger cars had to queue to pass each other, partly because so many people parked their cars on the street since the apartment buildings provided few or no parking garage spaces.

At the other end of the block was a park that was also served as part of an elementary school’s grounds. The school was built of blond-colored brick and rose three stories. It’s locally famous as being on the migration path for Vaux’s Swifts. Early each fall thousands of the birds would swarm and then spiral down into the decommissioned smokestack of the school incinerator and boiler. Beside the school were some community tennis courts.

Not far from the school was a senior center and some subsidized housing for families of modest means. Scattered here and there in the nearby blocks were grand old houses—some beautifully maintained and very expensive, other cut up into legal and illegal apartments.

Three blocks away was an arterial street, but it wasn’t too much wider than the street in front of my apartment building. I often walked there to buy groceries from a small grocery store and drop off my dry cleaning. Another block or two farther along the arterial was a branch library. Across the street from the grocery store was a small sheet metal fabrication business.

Once, when I was explaining to a reporter how our neighborhood had every possible kind of use and service, I gestured to the sheet metal company to illustrate the presence of light industrial uses. It was then that I realized is was called Schmeer Sheet Metal Works and Fabrication. “See,” I said, “we have the whole schmeer.”

That neighborhood is typical of many older neighborhoods in American cities. And in almost all of American cities and suburbs, that neighborhood would be illegal.

It is illegal to build an apartment building in a district of single family homes. Residential zoning was adopted in order to prevent single family neighborhood property values and families from being degraded by the presence of apartments where immigrants and low-class people lived. (If you think this is an exaggeration read the early history of zoning including the various state and federal supreme court decisions upholding challenges to the constitutionality of residential zoning.)

Residential zoning today has carried class separation to great extremes, which you can see if you travel by air: Over here, big single-family homes on big lots. Over there a mobile home park. In another direction, a pod of apartment buildings. A place of every income, and every income in its (separate) place.

Some affluent cities use their power to regulate development to exclude entire categories of housing from within their border, like apartments and mobile homes.

Typical city zoning makes it illegal to build or operate a warehouse or a light industrial use next to homes and a grocery store. The separation of industrial and commercial uses from residential uses was the very foundation of zoning a century ago.

It is illegal in most cities to build apartment buildings without providing one or more parking spaces for every apartment. The same would be true of grocery stores or office buildings. The neighborhood’s grocery store has fewer than 20 parking spaces.

The street in my old neighborhood does not meet more current design requirements, because it is considered inappropriate to design a street so that car cannot pass each other at any time or location. The street is 27 feet wide, curb to curb. That includes parallel parking on both sides, leaving a travel lane about 12 feet wide. That violates the standards for a local road recommended by the American Association of State Highway and Transportation Officials.

In most cities, you cannot operate a business out of your home if you have employees or customers arriving from other locations.

In too many places, it is effectively illegal to build subsidized housing for families of modest means. Even when it might be legal, local officials can interpret nebulous phrases like “preserve neighborhood character” or complex regulations in way that such housing is never approved.

A senior center, even though it is not a business, would be treated like a commercial use that cannot be allowed next to single family homes.

The elementary school would probably be illegal too because the school property would be too small to meet many state’s standards. The school is located on about 9.8 acres but many of those acres are occupied by a park open to the public at all times. The school, which has 685 students, would require a site of 11.85 acres in California, Texas and Connecticut, 15 acres in New Mexico and 18-20 acres in suburban Pennsylvania.

And then there is the absence of parking places; according to Virginia’s 2010 school design standards, the school should provide parking for all the staff, visitors and about a third of the students. (Apparently the legal driving age in Virginia is much younger than in Oregon.)

Of course, a jumbled neighborhood like mine would probably be regarded by many residential realtors, local officials, and even prospective home purchasers as a bad investment. After all, it’s about as far from the suburban residential model as possible. But in fact, this neighborhood, while providing many apartments (formerly) affordable by lower-income renters, was and is highly sought after. According to Zillow, homebuyers in this neighborhood pay more than twice as much per square foot to live here than they would in the region’s suburbs.

One reason the prices are so high is because the supply of this kind of neighborhood has been limited by zoning, parking regulations, street design standards, school design standards, and building codes. We need many more neighborhoods like this all across America, so that all of the increasing numbers of people who want to live in places like this can afford to live in them.

Does that mean do away with all regulations? No. But it does mean that we need to stop assuming that everyone wants to, or can afford to, live in a big-house on a big lot in a residential-only neighborhood. We shouldn’t be making it illegal to build the kind of neighborhoods, like mine that are increasingly popular and in short supply.

An illegal neighborhood in NW Portland.

Robert Liberty has worked over the last 34 years as an attorney, elected official and university program administrator to help implement plans to create livable, sustainable and equitable cities and to conserve the rural lands and resources we need for food, fiber and wildlife. He has called Portland home for almost half of a century.